Thank you so much for inviting me to the beautiful state of Colorado.
I always feel honored to address librarians. First Amendment lawyers may
be useful from time to time, but as far as I'm concerned, it's librarians
who make intellectual freedom a reality in people's lives. From combating
Internet filters and other efforts to censor youth, to helping bridge
the "digital divide," libraries have been on the front lines
of all the important free-expression battles.

Today I want to talk to you about a new battleground in the culture wars
-- copyright. Or, as it is sometimes oxymoronically called, intellectual
property. I say oxymoronic because literature, music, and other creations
of the human imagination are not the same as land, cars, or corporate
bonds  things we ordinarily think of as property. The media companies
that control most copyrights in this country of course disagree -- which
explains why copyright is such a hotbed of political strife today. For
in order to protect their intellectual property, these companies have
persuaded Congress to pass sweeping and troublesome new laws, with tongue-twister
names like the Sonny Bono Copyright Term Extension Act and the Digital
Millennium Copyright Act (or, for short, the DMCA).

Copyright, even more than other areas of law, is a special priesthood
with its own rituals and incantations, incomprehensible to the uninitiated.
But since it has now become a major free-speech battleground, it behooves
us to try to untangle the doctrine and translate the sacred texts. I promise
to do so this morning without resorting to legal mumbo-jumbo and thereby
reducing you to a catatonic state. It helps that although the legal constructs
can get convoluted, copyright law is basically about art, culture, and
the human imagination, and therefore is full of marvels.

So, here's the roadmap. First, perhaps the world's shortest introduction
to copyright and its tenuous balancing act with free expression. Next,
how Congress has frozen the public domain by continually extending the
duration of copyright, and how a coalition including libraries has challenged
that state of affairs in a case that was argued just last week in the
Supreme Court. Finally, the mysteries of the DMCA, with its draconian
restrictions on developing or discussing certain technologies that can
be used to circumvent encryption systems for copyrighted works.

The Balancing Act

When we think of creativity and free expression, it's the First Amendment
of course that comes to mind. But the section of the Constitution that
specifically states an intention "to promote the progress of science
and useful arts" is the Copyright Clause. It authorizes Congress
to grant "for limited times to authors and inventors the exclusive
right to their respective writings and discoveries."1

This language is critical. It talks about an "exclusive right"
-- but only for "limited times." The monopoly control and profits
that the Constitution lets Congress give to authors, artists, and scientists
to reward their creativity are only temporary.

This plan for limited times reflects a vision of culture as growing from
past achievements. Art and knowledge do not, as one scholar quipped, rise
full-grown, like "Aphrodite from the foam of the sea."2
From Shakespeare to James Joyce, Michelangelo to Andy Warhol, artists,
authors, and historians have echoed, copied, and in the process transformed
the creations of the past. Rock music, folk, blues, and jazz all borrow
themes and melodies from earlier creations.3 The
Copyright Clause recognizes this richness of cultural borrowing by contemplating
that creative works will, after a "limited time," enter the
public domain, and be freely available to all.

But even during the limited term of copyright, free expression has to
be considered. Scholars, gadflies, maverick publishers, library users,
and these days of course Web site owners want to copy, disseminate, quote,
discuss, and borrow. The media companies that make up the copyright industry
want to lock up, charge money for access, and basically control all uses
of their products. Hence the tension between wide-open freedom of speech
and the temporary monopoly envisioned by the Copyright Clause.

The tension is a familiar one in our cultural history. In 1995, the American
Society of Composers, Authors, and Publishers (ASCAP) demanded fees from
summer camps for songs the kids sang around their campfires. Disney similarly
threatened daycare centers that had likenesses of its famous cartoon characters
painted on their walls.4 From attempts to stop the
new technology of "piano rolls" in 1908 to efforts to ban the
video cassette recorder in the 1980s and "anti-circumvention"
laws like the DMCA that restrict access to copyrighted works today, the
media industry has pushed for stronger controls.

To counterbalance this push for control, copyright law has developed
four major free-expression safety valves. The first of these is the so-called
idea/expression dichotomy, which allows facts and ideas to be copied as
long as the author's particular language, details of plot or character,
or specific imagery isn't used. The idea of star-crossed lovers whose
families object, and whose passion comes to a tragic end, would not be
copyrightable even if Will Shakespeare had written his version of the
story just last week. (In fact, Shakespeare also borrowed  he took
the plot of Romeo and Juliet and his other masterpieces from existing
sources.)

The second free-expression safety valve is the fair use doctrine. It
allows anyone to copy or quote from copyrighted works for purposes of
commentary, criticism, study, or even (perhaps especially) mockery. Not
only does fair use allow culture to thrive, it also prevents publishers
and authors' estates from suppressing ideas about their works which they
dislike, including the sometimes stinging criticism and parody that they
might prefer not to be heard.

So, when the rap group Two Live Crew borrowed the melody and parodied
the words of Roy Orbison's song, "Oh! Pretty Woman," in a vulgar
manner that the corporate copyright holder did not appreciate, the Supreme
Court indicated that it was probably fair use. Even though intended to
make money, Two Live Crew's raunchy version served the important free-speech
purpose of mocking the "white bread" original.5

More recently, author Alice Randall faced a fair-use battle when she
borrowed characters and plot line from Gone With the Wind to produce
The Wind Done Gone, a fictionalized critique of the racism that
pervades Margaret Mitchell's classic novel. The Wind Done Gone
mentions homosexuality and interracial sex, both of which the Mitchell
estate specifically prohibits in "derivative works."6
A trial judge banned The Wind Done Gone, saying it was an unauthorized
sequel. The appeals court reversed, finding it to be fair use.7

The third free-expression safety valve -- and an especially important
one for libraries -- is the first sale doctrine. Copyright owners control
the first sale of their works, but after that, purchasers can give them
away, sell them, lend them to friends, or donate them to secondhand stores,
libraries, schools, or flea markets. Libraries can loan books innumerable
times to countless borrowers (who in turn can lend them to their friends,
as long as someone returns them on time).8

The first sale doctrine not only facilitates the spread of knowledge,
it also recognizes the limits of copyright enforcement. For, to try to
monitor what millions of individuals do with the books, CDs, and videos
they buy would require a level of surveillance unacceptable to most Americans.Yet,
as we'll see, the industry's encryption of copyrighted works today drastically
undermines the ability to lend, re-sell, or give away -- the core of the
first sale doctrine.

The fourth free-expression safety valve is the public domain, which makes
works available for republishing, translating, selling, copying, or performing
as soon as the "limited time" of copyright expires. Now, most
of the copyright industry has a severe allergic reaction to the public
domain. It says works are neglected and decay when nobody with monopoly
control is motivated to preserve them. Fans of the public domain counter
that it enhances preservation of works that are neglected because the
copyright owner sees no immediate profit (particularly photographs and
films). Once these works are in the public domain, archivists don't need
to go through the laborious, expensive, and often futile process of trying
to locate the owner and seek permission.

Here's an example of the debate. In a recent article, Paramount Pictures
vice president Scott Martin cites the classic Frank Capra movie, It's
a Wonderful Life, which entered the public domain at the end of its
first copyright term because its owner failed to file a timely renewal
application. (This was back in the days when the copyright term was 28
years, renewable for another 28.) As a result, Martin says, "the
film was endlessly broadcast by local stations and cable channels looking
for no-cost programming." It was "sliced and diced" to
fit into time slots between commercials. "By the 1980s," he
says, "there were multiple versions of the film, all in horrid condition."
But once the owners of the rights to the story and music asserted their
copyright claims, "the film was spruced up and restored," with
marvelous results.9

There's another interpretation of this story, though. All those allegedly
"horrid" copies enabled lots of people to see the film. In addition,
anyone who has been on an airplane or watched movies on TV knows that
media companies frequently allow their precious copyright-protected masterpieces
to be "sliced and diced" (not to mention cutting out naughty
words or scenes). Hence, the public domain can hardly be blamed for insults
to the integrity of creative works.

Like preservation, scholarship is also enhanced by the public domain.
Historians can reproduce pictures, letters, sound recordings, and other
documents without pursuing what is often a futile quest for copyright
permission. Even when owners can be found, they may refuse permission,
or impose unpalatable conditions. The estate of songwriter Lorenz Hart,
for example, will not allow any biographer who mentions Hart's homosexuality
to reprint his lyrics. The deceased poet Sylvia Plath's husband, Ted Hughes,
along with his sister Olwyn, strictly controlled what biographers and
anthologizers could say about her life and their stormy marriage in exchange
for permission to quote her poems or letters.10

Finally, of course, the public domain enhances access. Works that were
unavailable, or available only in expensive editions, can be published
and distributed cheaply, often with new introductory or supplementary
material. The year after Willa Cather's My Antonia entered the
public domain, seven new editions appeared, with different introductions
and varying prices  a pattern that critics say is typical.11

The Frozen Public Domain: Eldred v. Ashcroft

Despite these virtues of the public domain, over the last century it
has become less a reality than a receding mirage. In the "Sonny Bono
Copyright Term Extension Act," passed four years ago, Congress stretched
the "limited" term of copyright to a near-century for corporations
and even longer for most individuals and their heirs. This is a far cry
from the original "limited time" of 14 years, renewable for
another 14, that was set in 1790 by the first copyright law.

Congress extended that term only twice in the next century and a half
-- to 28 years, renewable for another 14, in 1831; and to 28 renewable
for another 28, in 1909.12 Between 1962 and 1974,
however, Congress enacted nine short-term extensions, to prevent older
works from entering the public domain while it prepared the massive copyright
revision of 1976.13 That law changed things radically
by adopting a long, flexible term: life of the author plus 50 years for
individuals and their estates; 75 years for works "made for hire"
(that is, owned by corporations).14

By the 1990s, the copyright industry wanted still more. Among other items
of intellectual property, the original Mickey Mouse, who debuted in the
film Steamboat Willie in 1928, was slated to enter the public domain
in 2003; Pluto, Goofy, and Donald Duck were not far behind. Disney and
other firms began "some aggressive lobbying," as one journalist
put it, accompanied by large, well-timed, and "well-targeted campaign
contributions."15 The result, in 1998, was
another extension, for 20 years. Named for one of its leading sponsors,
the Sonny Bono law extended the "limited time" to 95 years for
corporations and author's life plus 70 years for individuals or their
estates.16

As one scholar quipped, this does begin to look like perpetual copyright
"on the installment plan."17 Indeed,
Mary Bono, who succeeded to her husband's seat in Congress, reported that
"Sonny wanted the term of copyright protection to last forever."
She added that Jack Valenti of the Motion Picture Association of America
(the MPAA) had suggested a term of "forever less one day."18

Among those perturbed by the latest term extension was Eric Eldred, founder
of a small online enterprise called Eldritch Press. Eldred's idea was
to provide easily readable public-domain texts online. The subjects range
from small boats to children's stories to works by Henry James. In 1997,
the National Endowment for the Humanities recognized Eldritch Press as
"one of the 20 best humanities sites on the Web."19

Eldred was set to add works by Sherwood Anderson and Robert Frost, among
others whose copyrights were about to expire, when the Sonny Bono Act
intervened. He began to complain publicly, at about the same time that
a law professor and computer whiz named Larry Lessig began considering
a legal challenge to the Sonny Bono law. (Other plaintiffs in the case
he eventually filed included Dover Publications, famous for quality reprints
of public domain works, a company that restores old films, a church choir
director, and a publisher of classical sheet music.)

There are three legal theories in Eldred's case. First is that the Sonny
Bono law violates the Copyright Clause requirement of "limited times";
that is, if Congress can keep extending existing copyrights, then "limited
time" becomes meaningless; it can be extended indefinitely. Second,
the law contradicts the purpose of the Copyright Clause, to motivate creativity,
since extending monopoly rights for already-created works by definition
does nothing to encourage their creation. Finally, the law violates the
First Amendment by preventing older works from entering the public domain.

These theories were ingenious but novel, and the courts made quick work
of them. A federal judge dismissed Eldred's suit, and in February 2001,
the Court of Appeals affirmed. It ruled that neither the opening words
of the Copyright Clause ("to promote the progress of science and
useful arts") nor its requirement of "limited times," prevents
Congress from extending copyright as much or as often as it likes. As
for the First Amendment, the court said that nobody other than the copyright
holder has a "First Amendment interest in a copyrighted work."20
Of course, the only reason there was a copyright holder for the works
in question (such as Steamboat Willie) was that the very law Eldred
was challenging prevented them from entering the public domain. The court's
reasoning was thus completely circular.

Lessig now asked for Supreme Court review, and an array of library groups,
law professors, archivists, writers, computer professionals, arts and
humanities alliances, and media centers joined in urging the Court to
take the case. Last spring, the Supremes obliged, and in May, 14 friend-of-the-court
briefs were filed supporting Eldred and explaining in vivid terms the
costs to culture when Congress freezes the public domain.

The brief from the College Art Association, for example, joined by the
National Humanities Alliance and other groups whose members study, publish,
and preserve visual art, explains that scholars assembling texts and databases
often cannot locate the owners of copyrights in letters, songs, photographs,
and other documentary material. Frankly, most scholars have neither the
time nor the financial resources to embark on such quests. And when copyright
owners are located, some refuse permission or charge prohibitive licensing
fees. Film scholars suffer particularly, because most film journals will
not publish even a single film frame without copyright permission.21

Another brief came from online archives. They explain that the Internet
allows countless forgotten or hard-to-find works to be discovered and
distributed. Archives now "digitize and distribute millions of out-of-copyright
books, movies, and music ... materials that commercial publishers, distributors,
and rights-holders have effectively abandoned."22

For example, the Steven Spielberg Digital Yiddish Library, with 12,000
works, has "helped turn a dying literature into the most in-print
literature on the planet." By contrast, "other parts of our
culture and heritage remain obscured behind the wall of copyright."
Early issues of The New Yorker, Time, Readers Digest, and other
magazines "provide an unparalleled window into early 20th century
American life and culture." But unlike the treasures in the Spielberg
archive, "few if any of these works can be found online because they
are still under copyright. Until they fall into the public domain, the
process of clearing rights for each article, drawing, and photograph makes
digital archiving of such composite works practically impossible."23

A brief from the American Association of Law Libraries, the Medical Library
Association, and the American Library Association, among others, describes
Documenting the American South, an electronic collection that provides
no-fee access to more than 1,000 publications and manuscripts. It includes
about 160,000 pages of slave narratives, of which, in many cases, only
a few hard copies exist, along with Confederate imprints and materials
on the African American church. Before digitization, hardly anyone got
to see them. Now they are accessed by more than 5,000 people per year.
The project would be impossible without the public domain.24

As if to outdo Eldred's supporters, those on the government's side submitted
20 friend-of-the-court briefs to the Supreme Court. Several came from
the copyright industry; others from celebrated copyright holders -- the
estates of George Gershwin and George Balanchine (among others who joined
a brief from the Association of American Publishers); the Songwriters
Guild; AmSong, Inc. (whose members include Bob Dylan, Carlos Santana,
and Thelonious Monk, Jr.); and the estates of E.B. White and Dr. Seuss.25
Their general theme was an assumption -- inaccurate, as we've seen --
that a creative work is a form of property which the author and her heirs
should control forever.

The Dr. Seuss brief went the farthest in denying any value in the public
domain, noting with distaste that some public domain entrepreneurs and
comedians have borrowed well-known images "to glorify drugs or to
create pornography."26 The assumption here,
of course, is that irreverent and even scandalous uses of famous images
should be suppressed. These writers' heirs seem unwilling to accept that
the very success of their creations has made them into cultural icons
that will inevitably be critiqued and parodied.

I'm reminded of the notorious "Disney Orgy," a parody created
by Paul Krassner for The Realist magazine in the 1960s. This hilarious
cartoon depicts Mickey, Minnie, and many other Disney characters in sexually
suggestive or drug-imbibing situations. And despite the Disney company's
efforts over the years to suppress it, the "Orgy" remains an
important commentary on the Disneyfication of American culture, and enjoys
a well-deserved underground following to this day.

Not all famous authors, by the way, support "perpetual copyright
on the installment plan." William Gass, Peter Matthiessen, and Ursula
Leguin, among others, joined a brief to the Supreme Court from the National
Writers Union on Eldred's side. They point out that Disney, which has
worked so hard to freeze the public domain, nevertheless has taken advantage
of it many times by creating animated versions of Snow White, Cinderella,
The Hunchback of Notre Dame, and other classics.27

Now, the Eldred case is not an easy one. As the government argues,
how is a court to determine what is an appropriate, or constitutionally
permissible "limited time"? The Copyright Clause does seem to
give Congress discretion to make this judgment. And perhaps, as defenders
of strong copyright protection argue, fair use, the idea/expression dichotomy,
and other free speech-friendly facets of the law are enough to protect
intellectual freedom, no matter how long copyright lasts. But if this
is so, then arguably the most important free-expression safety valve --
the public domain -- could disappear into a black hole where "limited
time" becomes meaningless.

On October 9, Lessig argued Eldred v. Ashcroft before a packed
audience in the Supreme Court's chambers. Several of the justices seemed
incensed by the Sonny Bono law. Sandra Day O'Connor, for example, said
the law "flies directly in the face" of the "very short
term" of copyright that the framers of the Constitution had in mind;
but she wondered whether this necessarily made it unconstitutional. Justice
Ruth Bader Ginsburg had a variant on the same question: should there be
any judicial review of Congress's decisions in this area?, she asked.

Justice Stephen Breyer seemed clearly on the plaintiffs' side: responding
to the government's argument that Congress can legitimately promote "science
and useful arts" not by encouraging creativity but simply by rewarding
the distributors of already-created works, he asked Solicitor General
Ted Olsen whether Congress could therefore pass a law granting copyrights
for the Bible, Shakespeare, or Ben Jonson? The question was obviously
rhetorical, but Olsen was reluctant to say that even this would be unconstitutional.28

Several other justices seemed inclined to invalidate at least the law's
extension of existing copyrights. But O'Connor asked Lessig whether this
wouldn't mean that the 1976 Act was unconstitutional as well, since it
also extended existing copyrights. Lessig said the Court could make a
distinction because of the settled expectations created by the 76
Act. The question is perhaps the hardest one the Court confronts as it
wrestles with a law most of its members seem to understand is a perversion
of the copyright system.

The Ins and Outs of Circumvention

Now let's turn to the apocalyptically named Digital Millennium Copyright
Act  the DMCA. This law is the industry's dream answer to the problem
of copying on the Internet, but for scholars studying encryption, it's
a nightmare.

The law originated with a 1994 "Green Paper" that the Clinton
Administration produced in response to industry concerns about downloading
and sharing copyrighted material online. The problem of commercial piracy
is of course a serious one (as it was before the invention of the Internet).
The question is how to address it without undermining copyright's free-expression
safety valves. The Green Paper took a radical approach, asserting that
every reading or viewing of a work on a computer should be considered
a reproduction for purposes of copyright law.29
Such an expansive view of the law not only eliminates the first sale doctrine
online, it locks up everything that in the offline world could be freely
browsed in a bookstore or library. As one copyright professor put it:
"Browsing through a borrowed book, lending a magazine to a friend,
copying a news article for your files  all seem innocuous enough.
But the Clinton administration plans to make such activities illegal for
works distributed via digital networks."30

Starting from this radical premise, Congress now crafted a law to help
the industry prevent unauthorized access to, or use of, copyrighted works.
The resulting DMCA not only makes it a crime to circumvent the industry's
encryption devices in order to access works, but also criminalizes the
intellectual process of creating or distributing circumvention tools.31
These "tools" provisions of the DMCA (sometimes called the "anti-trafficking"
provisions) go well beyond anything previously contemplated in the law
-- for instead of penalizing copyright infringement, they ban research
and communication of information that might be used for infringement.32

Here's how it works. In early 2001, a group of music companies issued
a "Public Challenge" to computer experts to see if they could
circumvent the watermarks used to encrypt copyright-protected music. Edward
Felton and fellow scientists at Princeton cracked the codes, and were
preparing to discuss their research at an upcoming conference when they
received a letter from the Recording Industry Association of America (the
RIAA), threatening legal action under the DMCA if the researchers published
or publicized their work. Felton and other scientists sued to challenge
the RIAA's threatened use of the DMCA. The RIAA now backed off, saying
that its letter was "a mistake" (although reserving the right
to threaten other scholars in the future).

The government moved to dismiss the case, arguing that it was "not
ripe," given that there was no pending DMCA suit or realistic fear
of one. In the end, the case was dismissed; Felton had already presented
his findings at another conference.33

Russian researchers were not so fortunate. In July 2001, federal agents
arrested a young programmer named Dmitri Sklyarov at a conference in Nevada
after he presented parts of a dissertation on "eBooks Security -
Theory and Practice." The paper described a program he had developed
to disable the Adobe company's e-Book Reader, encryption software for
electronic books, and to allow the books' owners to change their formats
for easier reading, printing, copying, or re-arranging, much of which
would qualify as fair use. The program was legal in Russia where Sklyarov
had created it as an employee of the ElcomSoft Company.34

The arrest of a scholar for discussing technical research caused quite
a stir, and in December, the government agreed to "defer" the
charges against Sklyarov in exchange for his agreement to testify at a
criminal prosecution of ElcomSoft.35 When, a
few months later, ElcomSoft moved to dismiss these criminal charges, library
groups filed a friend-of-the-court brief arguing that "digital rights
management" (or DRM) technologies like Adobe's e-Book Reader restrict
traditional First Amendment-protected activities such as lending or partial
copying that qualifies as fair use. Corporations may be free to impose
such restrictions on their products, but giving them the force of law
through the DMCA, they said, violates the First Amendment.36

The federal court did not agree. Acknowledging that DRM tools like Adobe's
e-Book Reader do indeed restrict activities protected by the first sale
and fair use doctrines, the court said Congress nevertheless has the power
to "sacrifice" these rights. Besides, the court said, the DMCA
doesn't eliminate fair use  encryption may disable a computer's
convenient cut-and-paste functions, but e-book owners can still retype
or hand-copy the text.37

Here the court echoed another DMCA case -- and the most hotly fought
one to date. This one involved a suit by the film industry to suppress
a program called DeCSS, which unlocks the industry's "Contents Scramble
System" (CSS) for DVDs, and enables them to be played on machines
that don't have descramblers. DeCSS was created in 1999 by three European
programmers, one of them a Norwegian 15 year-old, Jon Johansen, whose
main interest was not copying but playback on open source Linux-based
computers.38

The movie companies did not sue Johansen, or the hundreds of Web publishers
and activists who by now were discussing, describing, and distributing
DeCSS online. Their suit instead focused on Eric Corley, proprietor of
a Web site popular with hackers, which had published DeCSS as part of
a news article. Following a trial in 2000, a federal judge prohibited
Corley and two other defendants from publishing DeCSS or posting it on
the Internet; later, he barred Corley from hyperlinking to Web sites where
DeCSS could be found.39

The Corley case epitomized the shrinking of fair use more dramatically
than ElcomSoft. For, as the judge in ElcomSoft said, those wanting to
copy portions of a work for criticism, scholarship, or other fair use
purposes, can still do so by laboriously retyping by hand. With visual
images, retyping just doesn't work. To obtain a film clip, or even a single
frame, one must copy it.

Cryptographers, law professors, the ACLU, and the ever-heroic American
Library Association were among the groups supporting Corley in his appeal.
The ACLU/ALA brief pointed up both the draconian effects and the enforcement
problems of the DMCA. Columbia law professor Jane Ginsburg (daughter of
Supreme Court Justice Ruth Bader Ginsburg) links to sites where DeCSS
is posted during her copyright course. Protesters have worn "T-shirts
bearing portions of the DeCSS source code."40
The prospect of federal agents confiscating T-shirts or wading into a
law school class to prevent computer links to Web sites suggests that
Congress's and the industry's attempts to stop decryption may be both
wrongheaded and ineffective.

But the court of appeals in the Corley case, fearful of widespread copying
and offended by the hacker attitude, upheld the DMCA's application to
DeCSS. The court noted that the trial judge's original order had only
barred posting DeCSS; the order was extended to bar hyperlinks only after
Corley defiantly announced his intention to engage in "electronic
civil disobedience" by linking to other Web sites containing the
program.41

The DMCA's ban on decryption technology is constitutional, said the court
of appeals, because there is no other way to prevent piracy, even if circumvention
for fair use purposes gets eliminated in the process. Moreover, neither
the trial judge's order nor the DMCA abolished the right of fair use --
they merely made its exercise more difficult. Although Corley insisted
that the public "should not be relegated to a 'horse and buggy' technique
in making fair use of DVD movies," the court said, people can still
write film reviews, quote dialogue, and record portions "by pointing
a camera, a camcorder, or a microphone at a monitor as it displays the
DVD movie."42

But the court of appeals put its finger on the circumvention dilemma
when it identified "two unattractive alternatives: either tolerate
some impairment of scientific communication in order to stop piracy, or
tolerate some unlawful decryption in order to avoid censorship."43
With the DMCA, of course, Congress chose to impair a great deal of communication
in an attempt to stop not only commercial piracy but individual, nonprofit
copying and sharing of the kind that Americans have always enjoyed.

Copyright enforcement will never be perfect, nor should it be. As numerous
commentators have observed, a leaky system is best, for culture and free
expression. Whether copying songs, pictures, or articles for friends and
colleagues is or is not a technical violation of copyright law, it has
largely been "below the radar" in the past, and has hardly interfered
with the profits of the copyright industry The legitimate goal of stopping
commercial piracy should not be an excuse for turning the Internet into
a police state or making criminals of computer scientists, Linux-lovers,
or teenage music fans.

This winds up my primer on the treacherous frontiers of copyright law.
These are difficult issues  with important stakes for intellectual
freedom. By necessity, I've left out a lot. But I hope that what with
Mickey Mouse, Dr. Seuss, and It's a Wonderful Life, I've kept my
promise of keeping you awake.

4. James Surowiecki, "Righting Copywrongs,"
The New Yorker, Jan. 21, 2002; "ASCAP Clarifies Position on
Music in Girl Scout Camps," ASCAP press release, Aug. 26, 1996, www.ascap.com/press/1996/ascap-082696.html
(accessed 10/25/02). Similarly, in the 1970s, ASCAP tried to stop grocery
stores from playing radios unless they paid licensing fees for the songs
that were broadcast; see Jane Ginsburg, "Copyright and Control Over
New Technologies of Dissemination," 101 Columbia Law Review
1613, 1622 (2001); Twentieth Century Music Corp. v. Aiken, 422
U.S. 151 (1975).

5. Campbell v. Acuff-Rose Music, Inc., 510 U.S.569
(1994). The fair use defense to copyright infringement turns on four factors
(although courts may consider other factors as well). The four set out
in the law are: "(1) the purpose and character of the use; (2) the
nature of the copyrighted work; (3) the substantiality of the portion
used in relation to the copyrighted work as a whole;" and "(4)
the effect of the potential market for or value of the copyrighted work."
17 U.S.C. § 107; see Harper & Row Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 560-61 (1985).

21. Brief of College Art Association, Visual Resources
Association, National Humanities Alliance, Consortium of College and University
Media Centers and National Initiative for a Networked Cultural Heritage
as Amici Curiae in Support of Petitioners, Eldred v. Ashcroft,
No. 01-618 (S.Ct., May 20, 2002), p. 13. For a list of the other briefs
and their signers, see the Eldred web site, eldred.cc/news.

24. Brief Amici Curiae of the American
Association of Law Libraries, et al., in Support of Petitiioners, Eldred
v. Ashcroft, No. 01-618 (S.Ct., May 20, 2002), p. 19. The librarians'
brief also addresses a small exemption in the Sonny Bono law that allows
libraries to reproduce and distribute works that are in their final 20
years of copyright, for purposes of research and preservation -- but only
if the works are not currently profitable for their owners, and if copies
cannot be obtained "at a reasonable price." The exemption is
so narrow, says the brief, that it "may ultimately do little, as
a practical matter, to mitigate the substantial burdens" of the Sonny
Bono law. Id., 29-30. The library exemption is found in 17 U.S.C.
§ 108(h). It adds to a section of the copyright law that permits
libraries to make limited copies for purposes of preservation or replacement,
and allows members of the public to make partial copies as long libraries
post copyright warnings near the photocopy machines. 17 U.S.C. §
108 (a)-(f). Section (g) explains that the law contemplates "the
isolated and unrelated reproduction or distribution of a single copy or
phonorecord of the same material on separate occasions"  as
opposed to "related or concerted reproduction or distribution,"
which is illegal.

31. 17 U.S.C. § 1201(a)(1)(A), (b). The DMCA
provides both civil and criminal penalties  up to a $500,000 fine
or five years in prison for a first offense, and up to $1 million or 10
years in prison for subsequent offenses. 17 U.S.C. §§ 1203,
1204.

32. Like the Sonny Bono law, the DMCA contains
a narrow exemption for libraries, which are allowed to circumvent encryption
to access a work "solely in order to make a good faith determination
of whether to acquire a copy," and only if the work "is not
reasonably available in another form." 17 U.S.C. § 1201(d).

36. Amicus Brief of the Electronic Frontier
Foundation et al. in United States v. Elcom Ltd. et al., CR 01-20138
RMW (N.C.Cal. Feb. 4, 2002), pp. 5-7, 22-23. The American Association
of Law Libraries and the Music Library Association were among the signers.

38. See "Interview with Jon Johansen,"
LinuxWorld.com, n.d.,www.linuxworld.com/linuxworld/lw-2000-01-dvd-interview.html
(accessed 11/5/02). Thanks to Seth Finkelstein for correcting an error
in the original version of this speech, attributing the creation of DeCSS
solely to Johansen.

39. Universal City Studios v. Reimerdes, 111
F.Supp. 346 (S.D.N.Y. 2000). It was not clear why the studios chose to
sue only Corley, but his lawyers suggested that it was because he had
"been a gadfly in the field of computer security, publishing information
that often embarrasses security professionals and others." Brief
of the Appellants in Universal City Studios v. Corley,No.
00-9185 (2nd Cir. 2001), p. 6.

40. Brief of Amici Curiae American Civil Liberties
Union et al. in University City Studios v. Corley, No. 00-9185
(2nd Cir. 2001). In addition to the ALA, others signers of this brief
were the Association for Research Libraries, Music Library Association,
National Association of Independent Schools, Electronic Privacy Information
Center, and Computer & Communications Industry Association.

41. Universal City Studios v. Corley, 273
F.3d 429, 441 (2nd Cir. 2001). The court also noted the origins of "2600"
 it is the hertz frequency "of a signal that some hackers formerly
used to explore the entire telephone system," and thus "has
special significance to the hacker community." Id. at 436
n.2.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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